The Roberts court after Kennedy

Posted Thu, June 28th, 2018 12:04 pm by Eric Citron

[Editor’s Note: In this piece, Eric Citron takes a quick look at five areas of the law influenced by Justice Anthony Kennedy. We will have additional posts that take deeper dives into these and other topics.]

At least since the retirement of Justice Sandra Day O’Connor in 2006, Justice Anthony Kennedy has been at the center of the Supreme Court’s ideological divide — the median justice most advocates thought they would need to convince to have a chance of prevailing. Of course, it hasn’t always been so: Chief Justice John Roberts cast the deciding vote to uphold the Affordable Care Act, Justice Neil Gorsuch sided with the left wing of the court on an immigration case this term, and other justices have sometimes been the deciders, too. But the longstanding nature of the court’s close division obscures the sheer volume of deciding votes that Kennedy has cast on many of the issues that concern the country the most. Even in the cases in which Kennedy (who is quite conservative) sided with his more conservative colleagues on the outcome, he frequently acted as a brake on moving the court’s jurisprudence even further to the right, often by writing for himself. Presumably, Kennedy’s replacement will lie somewhere to the right of Roberts. The goal here is to highlight just some of the most important areas in which replacing Kennedy’s vote with the chief justice’s would change core outcomes in constitutional law. It is an evidently consequential list.

Kennedy was not at all a staunch supporter of abortion rights; he authored the decision upholding the federal ban on so-called “partial birth abortions” in Gonzales v. Carhart. But he refused to vote to overturn Roe v. Wade when he had the chance in Casey, and he cast a deciding vote against the restrictive Texas laws at issue in Hellerstedt. Roberts wasn’t on the court for Casey, but his vote in cases like Hellerstedt suggests that he may well be willing to overturn Roe. If the president follows through on his promise to appoint justices willing to take that step, that long-imagined outcome for conservatives will have a serious chance of becoming a reality.

Kennedy is well known to be the author of the two key decisions over this decade striking down the federal Defense of Marriage Act and prohibiting state laws banning gay marriage. But his legacy as a defender of gay rights goes back further. Kennedy voted to strike down state laws banning gay sexual relations in Lawrence, which overruled the contrary holding in Bowers v. Hardwick. Justices Antonin Scalia and Clarence Thomas and Chief Justice William Rehnquist voted against Lawrence, and to the extent that Justices Samuel Alito and Neil Gorsuch and Roberts seem to be more in the mold of these justices than of Kennedy and O’Connor, it is not hard to imagine a substantial revision in the court’s gay-rights jurisprudence. One might well hope that the states will not act to annul existing marriages, ban new ones, or impose legal penalties on homosexual sex, but should some states choose to take those now forbidden steps, a new majority of the justices might be open to permitting them.

Kennedy has been the only conservative justice willing to endorse any limits on severe punishments under the Eighth Amendment. He has voted to prohibit the execution of the mentally disabled and to prohibit the range of crimes eligible for both the death penalty and life without parole, and has been more open than his conservative colleagues to allowing federal habeas review on such issues and on other issues affecting criminal justice. Kennedy has also voted against poor conditions in prisons, and has been an outspoken voice generally for sentencing and prison reform — even outside the court. Without Kennedy, the chances to see limitations on severe forms of punishment will essentially disappear, and there is again a chance that existing doctrines that Roberts voted against will be rolled back.

Kennedy surprised many court-watchers by voting to uphold the affirmative action plan at issue in Fisher, and his vote is necessary to preserve any majority at the court supporting the use of race to benefit disfavored minorities. Notably, while he voted for the same outcome in the Parents Involved case (which involved using race affirmatively in an effort to desegregate historically segregated school districts), he wrote separately, taking a more limited position than the chief justice, who famously wrote that “the best way to stop discrimination on the basis of race, is to stop discriminating on the basis of race.” That attitude — prohibiting all uses of race, even benign ones designed to remedy past discrimination quite directly — is thus very likely to prevail if Kennedy is replaced with a justice who leaves Roberts in the middle.

Kennedy is the sole conservative justice who has expressed any skepticism toward the practice of political gerrymandering. Based on the disposition of the cases decided this term, and the unwillingness of any other members of the conservative majority to join in the opinion authored by Justice Elena Kagan in Gill v. Whitford, it is reasonable to assume that — with Kennedy’s replacement — the odds of attaining any majority to impose limits on political gerrymandering will be greatly diminished.

These examples are only the most immediate ones with the greatest political significance. Kennedy was also frequently the median vote on issues such as when injured complainants can proceed by class action, and other cases on the business docket pitting plaintiffs against corporate defendants. Because he has been positioned at the center of the Supreme Court for so long, it is both hard to imagine a court without him, and easy to forget that so many of the court’s current stances are not inherent to the institution, but instead dependent on his votes. The profound nature of the change should not be underestimated; cases like Roe that have long been part of the canon of constitutional law may not long remain fixed stars without him.

Major Cases

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Air and Liquid Systems Corp. v. DeVries In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.

Nielsen v. Preap The judgments of the U.S. Court of Appeals for the 9th Circuit -- that respondents, who are deportable for certain specified crimes, are not subject to 8 U. S. C. §1226(c)(2)’s mandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail -- are reversed, and the cases are remanded.

Washington State Department of Licensing v. Cougar Den Inc. The Supreme Court of Washington’s judgment -- that the “right to travel” provision of the 1855 Treaty Between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation -- is affirmed.

Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.